Construction Law/Care of the Works during suspension under sub-clause 69.4
QUESTION: "Dear Sir, I asked a question on the subject matter on 22nd January 2016 but no response has been received yet. My question was as follows:
"Dear Sir/Madam, my question is related to FIDIC Conditions of Contract 1987 reprinted in 1992. On a highway construction project, the contractor suspended the Works under sub-clause 69.4 due to non-payment of IPCs and resumed after a certain period of time. During the suspension period, damages occurred to incomplete shoulders. The question is that who will be responsible for rectification of above-mentioned damages that have occurred during the suspension period i.e. the Contractor or Employer? It is pertinent to mention that the Contractor has also launched Extension of Time & idling charges claim for the suspension period."
Kindly respond to above question and oblige.
Engineer Tahir Jamil
ANSWER: Dear Tahir
as per SCL 20.1 the Contractor shall take care of the Works from the Commencement Date
until the date of issue of the Taking-Over Certificate for the whole of the Works.
This statement clearly includes the period of suspension.
---------- FOLLOW-UP ----------
QUESTION: Dear Sir, thank u so much for a very clear and comprehensive answer referring to SCL 20.1 of GC. Your kind attention is requested to the provisions of SCL 40.1 of GC regarding 'Suspension of Work' on instructions of the Engineer. Relevant part of this SCL is reproduced as follows:
"The Contractor shall, on the instructions of the Engineer, suspend the progress of the Works or any part thereof for such time and in such manner as the Engineer may consider necessary and shall, during such suspension, properly protect and secure the Works or such part thereof so far as is necessary in the opinion of the Engineer. ..."
On the other hand, no specific provision regarding protection and security of the Works has been included in SCL 69.4 of GC which deals with Contractor's Entitlement to Suspend Work.
A confusion is therefore created that whether the Contractor is not responsible for protection and security of the Works or any part thereof if the Work is suspended by the Contractor under SCL 69.4 due to non-payment by the Employer i.e. default of the Employer?
Further guidance in this regard will be highly appreciated please.
Engr. Tahir Jamil
The Contract documents should be read in its entirety. You cant pick up certain clause and demand all other clauses to match it. See, it is clear that the Contractor should take care of the works from beginning to the end (scl 20.1) and suspension does not mean the works are over.
On the other hand, you can refer to scl 19.1 which also emphasises my previous response:
((b) provide and maintain at his own cost all lights, guards, fencing, warning signs
and watching, when and where necessary or required by the Engineer or by any
duly constituted authority, for the protection of the Works or for the safety and
convenience of the public or others, and) - see this clearly oblige the contractor to protect the works and/or protect the public.